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In a recent judgment, Turkey’s Constitutional Court ruled that Can Atalay, an MP of the Workers’ Party of Turkey from the Hatay province, had his “right to be elected” and the “right to personal liberty and security” violated. The Court also ruled that he should be released immediately, which triggered a legal row that once again led to a full-scale discussion of the independence of the judiciary in Turkey. 3rd Penal Chamber of the Supreme Court filed a criminal complaint against the judges of the Constitutional Court who voted in favour of the violation judgment, a move which the critics saw as the sign of an unfolding constitutional crisis that completely overturned the established hierarchy of norms.
For years, Turkey’s failure to implement ECtHR judgments, especially those concerning high-profile trials, has led to the initiation of an infringement procedure against Turkey before the Council of Europe. There is an ongoing discussion around the practical implementation of the sanctions of the infringement procedure, which was previously applied only against Azerbaijan. In the case of Azerbaijan, the subject of the ECtHR judgment that the country refused to implement had been released later on, and the infringement procedure had been terminated before the sanctions began. For Turkey, we know that the Parliamentary Assembly of the Council of Europe (PACE) has called for sanctions against Turkey if Osman Kavala, who was tried and convicted in the same case as Can Atalay, is not released by 1 January 2024. However, the final decision on sanctions will be taken by the Secretary General of the Council of Europe, PACE, and the Committee of Ministers.
As the severity of the judicial crisis in Turkey prompted the international institutions at the European level to take up the issue, the European Association of Lawyers for Democracy and World’s Human Rights (ELDH), together with Can’s Friends/Colleagues, a group formed in Turkey in support of Can Atalay, organised a conference focusing on the Constitutional crisis in Turkey and Atalay’s legal situation.
On 7 December 2023, an online event entitled “Constitutional Crisis in Turkey: Effects of the Can Atalay Judgment” was organised, bringing together legal experts from Turkey and Europe who evaluated the process.
In the first session of the event, the constitutional crisis in Turkey was discussed, followed by the non-implementation of the Constitutional Court and ECtHR judgments and the ongoing infringement procedure against Turkey at the Council of Europe. In the first session, the speakers were Lawyer Erinç Sağkan, the President of the Union of Bar Associations of Turkey, Lawyer Tony Fisher of the Law Society of England and Wales, and Lawyer Ayşe Bingöl Demir, coordinator of the Turkey Human Rights Litigation Support Project (TLSP) at Middlesex University. The second session focused on the legal situation of Can Atalay, the rights violations during the Gezi trial, the conditions of Atalay’s detention and solidarity activities and featured Caroline Stockford, PEN Norway Turkey Advisor, Akçay Taşçı, Atalay’s lawyer, and Antonio Fraticelli, the head of the International Relations Commission of the Bologna Bar Association.
The audience included members of the Law Society of England and Wales, ELDH, PEN Norway, Turkey Human Rights Litigation Support Project, as well as hundreds of Turkish lawyers and participants from the Italian Democratic lawyers, the Human Rights Commission of the European Federation of Bar Associations, the Verona Bar Association, the Republican Lawyers Association of Germany, the Lesvos Law Centre, Lawyers Without Borders of France, Freedom House, Lawyers for Lawyers of Netherlands and the Day of the Endangered Lawyer Foundation.
ELDH: Can Atalay was not released and we are not surprised!
Thomas Schmidt, Co-General Secretary of the ELDH, started the event with an opening speech. Schmidt said that they have been following the trials of lawyers from ÇHD and ÖHD, who have long been members of ELDH. Members of ELDH personally attended the hearings as observers, and they continue to regularly visit their colleagues in prison. He added that no one’s right to a fair trial is respected in Turkey. Referring to the International Fair Trial Day, which was declared after Ebru Timtik’s death, Schmidt stated that this day was intentionally declared with a focus on Turkey, and in the year of its declaration the Ebru Timtik Award was given to Timtik, who died on that date.
Schmidt said: “The way the Can Atalay case unfolded has come to our attention. We have closely followed the reaction of the government and the Supreme Court in Turkey and we are not surprised. Turkey refuses to implement the judgments of the European Court of Human Rights. That a criminal complaint filed against the members of the Constitutional Court also points to a situation that is very specific to Turkey. We would therefore like to thank our colleagues who are concerned about the developments in Turkey for attending this meeting”.
Can’s Friends / Colleagues: “These developments are linked with what’s going on in the world”
After Schmidt’s opening speech, Lawyer Bilge Sayıcı took the floor on behalf of the Secretariat of Can’s Friends / Colleagues group, one of the co-organisers of the event. Sayıcı stated that the Gezi resistance was a cry against unlawful, unplanned urbanisation and rent-seeking. She emphasised that as a lawyer specialised in urban law and ecology, and as an activist rights defender, Atalay has been one of the prominent voices of this cry.
Sayıcı stated that the February 2023 earthquakes actually revealed the bitter consequences of the unplanned urbanisation protested during the Gezi demonstrations. She underlined that the continued imprisonment of Can Atalay also unlawfully prevented him from contributing to the quake-affected city of Hatay and other cities with his experience.
Lawyer Sağkan, the President of the Union of Bar Associations of Turkey: “Judgement about Can Atalay is part of a bigger picture in Turkey”
After Sayıcı, the floor was given to Mr Erinç Sağkan, President of the Union of Bar Associations of Turkey. Sağkan stated that in Turkey the problem goes beyond the non-implementation of a Constitutional Court judgement. He emphasised that the ECtHR judgments on Kavala and Demirtaş will constitute the framework in which Turkey’s European policy will be shaped in 2024. Pointing out that there are also problems in the implementation of the Constitutional Court’s Berberoğlu and Gergerlioğlu judgments, Sağkan stated that any attempt to think about the judicial crisis in Turkey separately from the aforementioned ECtHR judgments would lead to wrong conclusions.
Sağkan: “What is new in the Supreme Court’s Atalay judgment is its rhetoric!”
Sağkan stated that the rhetoric of the Supreme Court’s Atalay judgment constitutes a first in the history of the Turkish judiciary. He said that with this judgment, the Supreme Court openly declared that it would not comply with Article 153 of the Constitution. Sağkan said that the language used in the justification of the verdict was “a rhetoric that was written with the hat of a politician on rather than of a lawyer.” Sağkan pointed out that the Supreme Court had from time to time criticised the Constitutional Court for exceeding its jurisdiction and he emphasised that the border between a critique and a challenge had been crossed with this decision.
Stating that the Constitutional Court’s judgment prescribes the procedure to be followed regarding Atalay, Sağkan underlined that the judicial authority that should implement this procedure is the 13th Court of Assize of Istanbul. He also remarked that the violation of the law started before, at the first stage.
Sağkan also said that the Union of Bar Associations of Turkey visited the Council of Judges and Prosecutors and had a meeting with the acting president of the Council. The Union of Bar Associations of Turkey submitted a written application for disciplinary proceedings against the president and members of the 13th Assize Court of Istanbul and in this application, they requested the precautionary dismissal of the relevant court panel within the scope of the Law on Judges and Prosecutors. Sağkan added that the Union of Bar Associations also held a meeting with the president and the chief prosecutor of the Supreme Court, where they conveyed their criticisms. On the same day the Union submitted an application for the members of the 3rd Penal Chamber of the Supreme Court to be removed from their positions. Sağkan explained that on 10 November, the Union also protested by organising a demonstration that started from the front of the Constitutional Court building. Sağkan said that from the very first day, they refused to see the problem as indicating a need for a constitutional amendment, but as a problem that must be solved within the judiciary itself.
Sağkan expressed the Union’s concern that this process might be exploited as a pretext for initiating a Constitutional amendment process, and underlined that the Constitutional Court did have the mechanisms to remedy violations of rights in accordance with the legislation in force today. According to him, a most unwelcome development in Turkey’s context would occur if the constitution was amended in a way to undermine the Constitutional Court’s authority to remedy the rights violations, turning it into a mere administrative authority that could award compensations only. Pointing out that the decision of the 3rd Penal Chamber of the Supreme Court is also the subject of an individual application before the Constitutional Court, Sağkan emphasised the importance of the Constitutional Court’s decision on this issue.
Sağkan wrapped up his speech by stating that the struggle of lawyers and civil society in Turkey to secure the release of an elected member of parliament represents a broader struggle to steer the country back onto the path of the rule of law.
Tony Fisher: “The proposed prosecution of the Constitutional Court judges is a violation of the principle of judicial immunity”
After Sağkan, the next lawyer to take the floor was Lawyer Tony Fisher from the Law Society of England and Wales. “Independence means putting judges in a position to act according to their conscience and the justice of the case, free from pressures from governments, funding bodies, armies or any other source including other judges operating in different parts of the criminal or civil justice system,” Fisher said, assessing the situation in Turkey in the context of the principles of judicial independence and fair trial recognised under international human rights law.
Fisher emphasised that in Atalay’s case, the proposed prosecution of the judges of the Constitutional Court completely contradicts the concept of judicial immunity -one of the basic guarantees of judicial independence, and pointed out that there is no evidence the judges of the Constitutional Court have committed a crime: “The judges of the Supreme Court seem to make it clear that the “crime” committed by the Constitutional Court judges was to have “abused their constitutional authority” by coming to a different conclusion to themselves on the evidence presented,” he said.
Fisher concluded his words as follows: “The current situation, where lower court judges are refusing to implement the judgements of the highest court within Turkey’s own domestic jurisdiction introduces a domestic constitutional crisis into the landscape in Turkey and takes those other concerns to another level.”
Ayşe Bingöl Demir: “Non-implementation of court judgments rules out the claims of the existence of effective domestic remedies!”
Ayşe Bingöl Demir, coordinator of the Turkey Human Rights Litigation Support Project (TLSP), took the floor after Fisher. Her speech focused on how the non-implementation of court judgments leads to additional violations within the context of international law. Stating that the non-implementation of court judgments primarily contradicts the principle of separation of powers, Bingöl Demir underscored the crucial role of judicial oversight on both the legislative and executive branches as a safeguard and warned that undermining or abolishing this safeguard could result in a breach of all principles of international law.
Emphasising that human rights are an important topic in terms of the founding elements of the Council of Europe, Bingöl Demir suggested that the non-implementation of court decisions should be evaluated in the context of human rights law. She underlined that non-implementation of court judgments rules out the claims of the existence of effective domestic remedies.
Bingöl Demir pointed out the lack of merit in theories such as “the true national law” that have recently surfaced in Turkey and stated that these theories are in clear contradiction with both international conventions and Article 90 of the Constitution.
Noting that Turkey has a poor track record on the implementation of ECtHR judgments, Bingöl Demir presented striking data: “The European Committee of Ministers has 122 leading judgments pending implementation by Turkey and over 330 recurring judgments. And an overview of those judgments shows that each one of them points to problems in Turkey, that are serious, systematic, significant, and widespread violations of rights, but the current government turned it into a political statement to resist any changes.”
Pointing out the contribution of the Constitutional Court in today’s crisis, Bingöl Demir stated that the Constitutional Court did not take a proactive stance on the unimplemented ECtHR judgments. She reminded that despite the violation judgments by the ECtHR on Kavala Case, the Constitutional Court later ruled that there was no violation. She stated that similar ambivalent attitudes of the Constitutional Court contributed to the current crisis.
She claimed that the process before the Council of Europe could lead to Turkey’s expulsion and said that if the current crisis was solved, it would play a role in addressing Turkey’s ongoing challenges in implementing other ECtHR judgments.
Caroline Stockford: “I am proud of Can Atalay”
After Bingöl Demir, Stockford, PEN Norway’s Turkey Advisor, took the floor. Starting his speech in Turkish, Stockford said that not only as an international observer, but also as a human being, a woman, and a person who believes in democracy, she was proud of Can Atalay for always speaking honestly and bravely and that she saluted the Defending Gezi team with respect.
Stockford stated that PEN Norway had observed the Gezi trial from beginning to end. She said they had encountered an indictment consisting of hundreds of pages, which was very weak in terms of evidence, and that they could not understand how such a weak indictment could be accepted by the court. Stockford stated that they initiated the Turkey Indictment Project together with lawyers from Turkey in response to this confusion and that they have since analysed more than 20 indictments. These indictments included the one submitted in the Gezi Case, which took 16 long months to analyse.
Stockford: Atalay is held hostage because his struggle for democracy was effective!
Stockford, who was present at the verdict hearing, reminded that PEN Norway had published a book called “Monitoring Gezi, in which PEN Norway had compiled its observations of the Gezi trials and included interviews with all Gezi defendants. Recalling Can Atalay’s speech in the courtroom, in which he raised his fist and called on everyone to continue the struggle after the judges handed down his 18 years of imprisonment sentence, Stockford stated that Atalay was fighting for democracy -precisely why he was being held hostage.
Stockford ended her speech with the words of Can Atalay: “Please don’t let anyone make you believe that we are few. We are many, we are all over the world. Have no doubt that we will win with solidarity”.
Lawyer Akçay Taşçı: Some members of the judiciary in Turkey act as if they are political activists.
Taşçı started his speech by explaining the role of Can Atalay in the Gezi process and pointed out the fact that even before the Gezi Resistance had started, Atalay was the lawyer who, on behalf of the Chamber of Architects, filed a lawsuit against the urban planning process, which formed the basis of the Gezi resistance. Taşçı emphasised that despite the judicial decisions against it, a de facto intervention began in Gezi Park, which led the Gezi resistance to turn into a popular movement and a mass popular objection that spread to 80 provinces. He stated that Can Atalay was a member of the secretariat of Taksim Solidarity as both a lawyer and an activist during this process.
Summarising the trial process of the Gezi Case, Taşçı reminded that Atalay and other defendants in the Gezi trial were first acquitted and then eventually convicted. He stated that following the conviction, they had hoped that the Supreme Court would reverse a grave legal error, but the result was the opposite: the Supreme Court asked for a harsher punishment.
He stated that the politicisation of the judiciary does not necessarily mean the suppression of the judiciary through politics, but on the contrary, the judiciary with its members has adopted a form of political activism.
He stated that once Atalay became an MP, they applied to the Supreme Court for his release and suspension of the trial. Taşçı pointed out that the verdict against Atalay had not yet finalised during this process and highlighted that following the rejection of their application by the Supreme Court, they submitted an individual application to the Constitutional Court.
Stating that the Constitutional Court’s judgment represented a historic first in Turkey’s law practice with the way it described the procedure to be applied step by step, Taşçı emphasised that the judgment leaves no room for interpretation.
He criticised the decision of the 3rd Penal Chamber of the Supreme Court for formulating concepts such as “national judiciary” that have no legal validity and for misidentifying the Constitutional Court as a rival based on that concept.
He stated that Atalay’s lawyers have just filed an application for the Constitutional Court itself to remedy the consequences of the violation. Taşçı said that the Constitutional Court itself should rule for the release of Atalay, a matter which will be discussed by the Constitutional Court on 13 December.
Antonio Fraticelli: “I’m making a single call: Let’s not forget our colleagues in prison!”
Antonio Fraticelli said that he had travelled to Turkey 8 times since November 2022. He did not monitor the Gezi trial but participated in the ÇHD and ÖHD trials as an international observer. He visited lawyers in Silivri Prison many times and he was particularly impressed by his visits to Lawyer Aytaç Ünsal, who is imprisoned in Edirne. “I am now very familiar with the prisons in Turkey,” Fraticelli said, adding that he is now friends with the imprisoned lawyers in Turkey.
Fraticelli met Can Atalay at a meeting in September 2022 and visited him in prison twice afterward. He pointed out that the significance of the role fulfilled by lawyers becomes particularly apparent when dealing with criminal proceedings related to politically sensitive matters. Fraticelli visited Can Atalay after his conviction and he found Atalay still energetic and determined. He was surprised that someone who had received such an unjust and severe sentence could be so determined.
On 9 November 2023, Fraticelli visited Kozağaçlı who told him “I don’t believe that we have lost this case”. For 11 years, Kozağaçlı told to Fraticelli, international lawyers have been in uninterrupted solidarity with the imprisoned lawyers and this situation actually signalled a victory. Fraticelli said that he observed the same mood in his visits to Can Atalay. He urged everyone not to forget their colleagues in prison. Highlighting the importance of prison visits, Fraticelli stressed that those visits are important not only for imprisoned lawyers to know that they are remembered by their colleagues, but also to overcome the arbitrary conduct in prisons and to force the prison administrations to address the issues within the prisons. Fraticelli ended his speech by stating that he would soon return to Turkey.
Şerife Ceren Uysal: “Change will come as long as everything stays together.”
The closing speech was made by Şerife Ceren Uysal, the Co-General Secretary of ELDH. Uysal thanked those who participated in the event both as speakers and audience. She pointed out that this process is a new link in the chain of the judicial crisis in Turkey. She said, “Regarding this subject we are discussing around Can Atalay’s case, I believe his situation is far from unique. If it’s his identity as a lawyer, then Selçuk is in a similar position. Soo too are Barkın, Behiç, Aytaç, Aycan, Engin, Süleyman and Özgür. A few months ago, we could have been discussing Gülhan’s case instead.” Uysal stated that the same applies to Can’s identity as a politician, and in this case, Demirtaş, Yüksekdağ, Kışanak could have been discussed as well as Can, not to mention several politicians who are on trial in the Kobane case. In the case of Can’s role in the Gezi trial, the other Gezi defendants will have to be mentioned one by one, as the number of people who have been subjected to violations of the right to a fair trial in Turkey is endless. Stressing that the international situation is no different, Uysal mentioned Lawyer Nasrin, who has been repeatedly arrested in Iran, Egyptian writer Alaa, and Abir from Tunisia.
Uysal highlighted that unlawful practices are taking place all over the world and for this reason, ELDH played a founding role in the declaration of the Day of the Endangered Lawyer and International Fair Trial Day & Ebru Timtik Award. Uysal called for solidarity as the Day of the Endangered Lawyer in 2024 will focus on lawyers in Iran and the Fair Trial Day on the Philippines.
The event ended with Uysal’s following remarks:
“In fact, we are facing a severe hardship. However, this is a hardship that we all share. We also need to see that we have an opportunity in Turkey. If the process that led to Can’s arrest was the Gezi protests that took place in 2013, it is important to remember that these protests did not take place centuries ago in a land far away. Turkey still contains that dynamic, that spirit and that energy. It is necessary to conclude as Can, Selçuk and many other friends have always said: As long as we continue to stand side by side, not only within the borders of Turkey, but also in Europe, in other parts of the world, keep engaging with everywhere and everyone who suffers, engaging the migrant, engaging anyone who is subjected to racism, engaging the woman who is subjected to violence, as long as we continue to stand side by side with everyone, only and only as long as we continue to do this, something will change. Because nothing will change in isolation. The change will come as long as everything stays together.